Petition for Writ of Certiorari — Lin v. Gonzales (No. 05-1528)

Supreme Court, U8.

0515 28APR 25 2008

NOFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

GEN LIN,

Petitioner,

V.

ALBERTO R. GONZALES,

Respondent.

On Petition for Writ of Certiorari To The

United States Court of Appeals For The

Second Circuit

PETITION FOR WRIT OF CETIORARI

Gen Lin

Pro Se

1174 E. Ridge Road #18

Rochester, NY 14621

(917) 838-4212

QUESTIONS PRESENTED

FOR REVIEW

Whet alien who refuses conscription in his or her

country’s army for political reasons and encourages others to do

the same is eligible for asylum and withholding of removal under

the Immigration and Nationality Act where the alien is threatened

with imprisonment and the Attorney General acknowledges the

alien’s conduct.

PARTIES TO THE PROCEEDING BELOW

Gen Lin, Petitioner

Alberto R. Gonzales, U.S. Attorney General, Respondent

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .....00......eccceccseseseeeesseeee i

PARTIES TO THE PROCEEDING BELOW ..............-.ccccscseseseeees ii

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STATEMENT OF JURISDICTION .......ccccsccescssscscserecsensoresssereseess |

STATUTES AND REGULATIONS INVOLVED ....................... l

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TABLE OF AUTHORITIES

CASES

Alonzo v. INS,

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Diallo v. INS,

ne a TO exnbscnssinninsnthutnincshenasitasiindenctsiunesh 4

Gailius v. INS,

Gale TIED wricininitisestsotcnrarsitesetaiadcinmmaitekant 4

Gao v. Gonzales,

IE Fe Se ED ercicintdiicicsecinbicpeomivaniabsntonmenaid 4

Iichuk v. Atty. Gen.,

ee ee ells OUD sacapcernicaveteneciacdentomennconntdnmnenatt 4

INS v. Elias-Zacarias,

502 U.S. 478, 112 S. Ct. 812, 117 L. Ed. 38 (1992) .....4, 5

Nguyen v. Reno,

rpg Lg ts PR eee 4,5

Turcios v. INS,

821 F.2d 1396 (9th Cir. 1987) .............sccccssesseees PERCE Rt 4

STATUTES, REGULATIONS, AND RULES

Homeland Security Act of 2002,

Pub. L. 107-296, 116 Stat. 2135 (2002) ...........ecssssseeeeeees 3

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Supreme Court Rule 13.3 (2006)

DECISIONS BELOW

Lin v. Gonzales, No. 03-40940 (2d Cir. Jan. 30, 2006) (summary

order)

Lin v. Gonzales, No. 03-40940 (2d Cir. Nov. 4, 2005) (summary

order)

In re Lin, A77-322-660 (BIA Sept. 30, 2003) (unpublished).

Matter of Gen Lin, A77-322-660, Immigration Court, Aug. 9, 2001

(unpublished).

STATEMENT OF JURISDICTION

The Court has jurisdiction to consider the instant petition for a

writ of certiorari pursuant to 28 U.S.C. § 1254(1) (2006). The

original decision by the Second Circuit was issued November 4,

2005; however Petitioner then sought rehearing by the circuit

court. The Second Circuit denied the petition for rehearing by

summary order on January 30, 2006. Thus, under Supreme Court

Rule 13.3 (2006), the instant petition is timely filed.

STATUTES AND REGULATIONS INVOLVED

8 U.S.C. § 1101(a)(42)(A) (2006): “The term ‘refugee’ means (A)

any person who is outside any country of such person’s nationality

or, in the case of a person having no nationality, is outside any

country in which such person last habitually resided, and who is

unable or unwilling to return to, and is unable or unwilling to avail

himself or herself of the protection of, that country because of

persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social group,

or political opinion.”

8 U.S.C. § 1158(b)(1) (2006): “The Secretary of Homeland

Security or the Attorney General may grant asylum to an alien who

has applied for asylum in accordance with the requirements and

procedures established by the Secretary of Homeland Security or

the Attorney General under this section if the Secretary of

Homeland Security or the Attorney General determines that such

alien is a refugee within the meaning of section 1101(a)(42)(A) of

this title.”

STATEMENT OF THE CASE

Petitioner, a native and citizen of the People’s Republic of

China, entered the United States on or about September 21, 2000.

After informing an immigration officer upon his entry of his fear

of returning to China, Petitioner was placed in removal

proceedings pursuant to 8 U.S.C. §§ 1227(a)({1)(A),

1182(a)(7)(A)(i) (2000). Petitioner filed a timely application for

asylum and withholding of removal to China on February 20,

2001.

Petitioner testified before an immigration judge (“IJ”) in support

of his application on August 9, 2001. Petitioner recalled how in

September 1999, he refused an order to join the Chinese army,

fearing that a war between the People’s Republic and Taiwan was

imminent. Specifically, Petitioner refused to join because he did

not want to fight other ethnic Chinese persons. Moreover,

Petitioner urged his friends to also refuse conscription orders, and

at least one did.

The next year, in September, Petitioner was seized off the street

by several officers of the local public security bureau (“PSB”).

The officers took Petitioner to a police station, beat him severely,

and held him in custody for the day. Petitioner was eventually

released a few hours later: apparently, the entire ordeal had been a

case of mistaken identity. Petitioner went to the local courthouse

in order to file a complaint against the officers, but was rebuffed.

Petitioner went home, but his peace was short-lived: a family

friend informed Petitioner’s mother the following morning that

PSB officers were on their way to arrest him. Petitioner fled, and

when the officers arrived, they informed his mother they sought to

arrest him because he had attempted to file a complaint,’ and also

' Petitioner argued below that because the officers wished to arrest him for

filing a complaint, he feared persecution on account of this imputed political

2

stated they had a warrant to arrest him for his refusal to join the

army. The officers explicitly mentioned that Petitioner had urged

his friend to not join the army as well.

At the conclusion of Petitioner’s asylum hearing, the LJ granted

the application for asylum. The former Immigration and

Naturalization Service’ appealed to the Board of Immigration

Appeals (“BIA”). On September 30, 2003, the BIA sustained the

appeal, reversed the IJ’s decision, and ordered Petitioner removed.

The BIA based its decision in pertinent part on the conclusion that

a criminal prosecution for refusing to obey a country’s military

recruitment laws is not persecution. The BIA’s decision, though it

accepted the finding by the IJ that Petitioner had testified credibly,

at no time acknowledged Petitioner’s testimony that he had urged

others to disobey conscription.

Petitioner appealed to the United States Court of Appeals for the

Second Circuit. The circuit had jurisdiction to review the BIA’s

decision pursuant to 8 U.S.C. §§ 1252 (b)(1), (d) (2006), as it was

a final order of removal. In a summary order dated November 4,

2005, the Second Circuit denied Petitioner’s petition for review,

affirming the decision of the BIA. Petitioner then filed a petition

for panel rehearing under Fed. R. App. P. 40 (2005), which was

denied by the circuit court on January 30, 2006.

ARGUMENT

The legal conclusion by the Second Circuit, that an alien who not

only refuses to join his country’s army for avowed political reasons

opinion as well. Without withdrawing any factual claims, Petitioner does not seek

review of the denial of relief on these grounds.

? Effective March 1, 2003, the INS ceased to exist. Its functions were divided

among agencies of the newly-formed Department of Homeland Security (“DHS”).

Homeland Security Act of 2002, Pub. L. 107-296, § 441, 116 Stat. 2135, 2192

(2002).

3

but also urges others not to join cannot state a claim for asylum,

was erroneous. The decision by the court below could foreclose an

entire class of eligible aliens from seeking relief.

An alien who refuses to join an army for professed political or

religious reasons and then faces imprisonment for his or her refusal

is a refugee under 8 U.S.C. § 1101(a)(42)(A). See Iichuk v. Atty.

Gen., 434 F.3d 618, 625-26 (3d Cir. 2005); Nguyen v. Reno, 21)

F.3d 692, 696 (ist Cir. 2000); Alonzo v. INS, 915 F.2d 546, 548

(9th Cir. 1990); cf INS v. Elias-Zacarias, 502 U.S. 478, 482, 112

S. Ct. 812, 117 L. Ed. 38 (1992). Moreover, knowledge by the

persecutor of such motives can be established ‘bythe alien’s

conduct. Alonzo, 915 F.2d at 548.

In testimony which the UJ, the BIA, and the Second Circuit

accepted as truthful, Petitioner related how he urged others to

follow his lead and refuse conscription into the army of the

People’s Republic of China. The DHS, in its brief to the Second

Circuit, conceded that if Petitioner could establish that the Chinese

government was aware of his political motivations for not joining

the army, Petitioner could be eligible for asylum. Petitioner did

establish this, by testifying that the PSB referenced his

conversations with his friends when the officers came to his

mother’s home. Where credible, consistent, and detailed, an

applicant’s testimony may be sufficient to establish eligibility for

asylum. Diallo v. INS, 232 F.3d 279, 286 (2d Cir. 2000).

Where an alien urges others not to participate in government

actions, such as military recruitment, the government of his or her

country of nationality will likely impute a political motive to that

conduct. Alonzo, 915 F.2d at 548; Turcios v. INS, 821 F.2d 1396,

1401 (9th Cir. 1987) (alien observed in the company of an

opposition figure). The law does not require an alien to be a

prominent activist in order to be eligible for asylum. Gailius v.

INS, 147 F.3d 34, 45-46 (1st Cir. 1998). All that must be shown is

the persecutor was aware of his or her political opinion, or at least

believed he or she held one. See Elias-Zacarias, 502 U.S. at 482;

4

Gao v. Gonzales, 424 F.3d 122, 130 (2d Cir. 2005). Petitioner did

not keep his concerns to himself; nor did his urging others to refuse

to join the army remain a secret. Cf. Nguyen, 211 F.3d at 396. The

Chinese government was aware of his conduct, and cited it as

grounds to arrest him. Thus, Petitioner does not fear arrest simply

for violating his country’s recruitment laws. Contra id. He fears

retaliation for his known political opinion. Petitioner is a refugee,

and thus entitled to asylum. 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1); cf Elias-Zacarias, 502 U.S. at 482.

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests the

Court grant his petition for a writ of certiorari.

Respectfully submitted,

Con )-

Gen Lin, Petitioner pro se

1174 E. Ridge Road #18

Rochester, NY 14621

(917) 838-4212